SEC Overreaches with Investigation Into Speakers' Identities

EFF Argues that Subpoenas Threaten Users' Anonymous Speech Rights

San Francisco - The Electronic Frontier Foundation (EFF) urged a federal appeals court Wednesday to block administrative subpoenas from the Securities and Exchange Commission (SEC) that would reveal the identities of three pseudonymous Gmail users without meeting the legal standards for identifying anonymous speakers.

In an amicus brief filed in the U.S. Court of Appeals for the Ninth Circuit, EFF argued that the SEC failed to support its subpoenas with sufficient evidence to demonstrate a compelling need for the information that would overcome the emailers' constitutional right to speak anonymously.

"The First Amendment provides a baseline level of protection for speakers who choose to communicate their messages to the world anonymously or pseudonymously," said EFF Senior Staff Attorney Matt Zimmerman. "Lawbreakers may not hide behind the First Amendment, but investigating agencies cannot force companies like Google to disclose the identities of their customers who are speakers without demonstrating the investigation is legitimate. Here, the SEC has failed to provide anything but speculation that a law was even broken."

The SEC's subpoenas are part of an investigation into a potential "pump and dump" scheme involving Jammin' Java, Inc. which saw its stock price soar and plummet within a short period of time in late 2010 and early 2011. The SEC has argued that "online newsletters" potentially containing "materially misleading information" were distributed around the time of the stock price fluctuation. However, the SEC has not explained why it has targeted the Gmail account holders, nor has it even identified any newsletters in question, much less link the users to any allegedly illegal activities. In Wednesday's amicus filing, EFF explained why it would be particularly dangerous to allow government agencies the ability to investigate speakers without demonstrating a legitimate need for the information.

"Agencies like the SEC wield enormous powers to intrude into the private lives of Americans," Zimmerman said. "Especially because such agencies can ordinarily issue subpoenas without the direct oversight of the courts, courts must ensure that First Amendment rights be given full effect."